Pulen Phukan & Ors. vs The State of Assam

HELD: 1.1 The prosecution is not to accept the complainant’s version as Gospel Truth and proceed in that direction but the investigation must be made in a fair and transparent manner and must ascertain the truth. The evidence collected during investigation should then be analysed by the Investigating Officer and accordingly a report under Section 173(2) of the CrPC should be submitted. Further, the duty of the trial court is to carefully scrutinise the evidence, try to find out the truth on the basis of evidence led. Wherever necessary the trial court may itself make further inquiry on its own with regard to facts and circumstances which may create doubt in the minds of the Court during trial. If the investigation is unfair and tainted then it is the duty of the trial court to get the clarifications on all the aspects which may surface or may be reflected by the evidence so that it may arrive at a just and fair conclusion. If the trial court fails to exercise this power and discretion vested in it then the judgment of the trial court may be said to be vitiated. [Para 13][628-F-H]

1.2 In the instant case, the informant- PW-1, the injured eye-witness PW-2, eye-witness PW-3 and PW-4 have categorically stated that police personnel had accompanied the accused and they were there throughout the incident. This fact is noticed by the trial court in its judgment but it fails to get this clarification from the prosecution as to what occasioned the presence of the police personnel accompanying the accused and standing outside the house of the deceased to watch the accused assault PW-2 and commit the murder of his brother. The trial court had simply brushed aside the argument of the defence on this count without giving a serious thought. [Para 14][629-A-B]

1.3 If the police personnel were present at the time of commission of the offence, they should have immediately acted upon to set the criminal machinery in motion by first apprehending the accused from the spot itself rather than allowing them to get way by accompanying the police to the Police Station while continuing to assault the injured PW-2 on the way. The entire version of the prosecution witnesses that the police personnel accompanied the accused and were standing outside the house of the deceased creates a serious doubt on the very genesis of the prosecution story. [Para 15][629-C-D]

1.4 According to Section 149 IPC every member of the unlawful assembly must know the common object of their assembly and also the offence likely to be committed in prosecution of the common object. [Para 24][631-D]

1.5 None of the eye-witnesses have taken names of all the accused persons who are said to be 13 in number. Only names of 3-4 accused persons are taken who are said to have assaulted the deceased and the injured PW-2. None of the eye-witnesses have stated that all the accused persons had come with a common object of committing murder and assaulting the injured PW-2. It is also not stated by any of the eye-witnesses that there were any utterances by one or many or all the accused that they must eliminate the deceased and cause injuries to the injured PW-2. There is no evidence to the effect that any of the accused exhorted the others saying that they have to eliminate the deceased and assault the injured (PW-2). Further, it is clearly stated by the eye-witnesses PW-1, PW-2 and PW-3 that at least five police personnel were accompanying the accused and that they were standing outside and did not interfere in the commission of the alleged crime. Thus, it is difficult to decipher that all the members of the unlawful assembly were aware of the common object. [Para 25][631-E-H]

1.6 PW-2 and PW-3 have stated that the police along with the accused had come to arrest the deceased and the injured. If that was the object and the police were taking help of the accused persons then also the factum of common object of committing the crime of murdering the deceased is not borne out. It could be that the common object known to the accused was of apprehending the deceased and the injured PW-2 as there was some criminal case registered against them lodged by PP, one of the accused. In view thereof it cannot be held that there was an unlawful assembly and further to uphold the conviction under Section 149 IPC. [Para 26][632-A-C]

1.7 In the FIR, K and PP have not been assigned any role of assault. The role assigned is to MP, DP and HS. PW-1 has taken the name of K assaulting on the leg with an iron rod and PP assaulting on the neck. In the cross–examination, she has stated that DP assaulted on the neck. PW-2 has stated that K hit the deceased with a dao then he says that he did not see who assaulted PRP and later on says that it was PP who dealt a blow on the neck. PW-3 has stated that K assaulted with an iron rod and DP assaulted on the neck with an axe. PW-4 has stated that K dealt a blow on the leg with an iron rod and then DP dealt a blow on the neck of the deceased with an axe. There is no recovery at the instance of any accused under Section 27 of the Evidence Act. The axe, according to the evidence, was left on the dead–body of the deceased. What is evident is that K’s name was not included in the FIR but his name has been consistently taken by the eyewitnesses of first assaulting the deceased with an iron rod. In so far as PP is concerned, his name has been taken by PW-1 and PW-2 for assaulting on the neck and whereas PW-3 and PW-4 have taken the name of DP striking on the neck. Thus, there is material inconsistency in the statement of the eye-witnesses. [Para 27][632-C-G]

1.8 Another important aspect to be noted from the evidence of PW-1, PW-2, PW-3 and PW-4 is that after being hit by K with an iron rod, PRP, the deceased struggled to enter the room and there he was assaulted on the neck. When according to the prosecution story itself PRP, the deceased had entered the neighbour’s house it would be very difficult for the eye- witnesses to also have entered the house of PW-4 and PW- 5 and to witness the assault. PW-1 and PW-3 have not stated that they also entered the room where the assault took place. PW-2 has clearly stated that when he tried to follow PRP he was stopped by the accused and the police personnel who were standing outside. [Para 28][632-H; 633-A-B]

1.9 The evidence creates a very serious doubt on the entire prosecution story. It is quite possible that the police personnel of the concerned Police Station were there to arrest the deceased and his brother and in that process some resistance may have resulted into the incident causing the death of the victim. The injuries of PW2 have not been proved as admittedly there was no injury report. Even the scribe of the FIR has not been produced nor the signatures have been proved. It is quite possible that it was a complete set-up by the police. They having committed the murder in the process of arresting the deceased, and thereafter, knowing the enmity between the two parties, set–up a false case against the accused. Apparently, no explanation has come forward to explain the presence of the police personnel of the Police Station throughout the incident. [Para 29][633-C-E]

1.10 The prosecution has not established the place of occurrence by any material exhibit of having collected the bloodstained earth from the place of occurrence. Even the material exhibit, the axe, which is said to have been taken into custody by the police whether on the date of the incident or two days thereafter has also not been produced nor any evidence led to that effect. It is still a mystery as to how the Investigating Officer in his statement has stated that he had filed a charge-sheet against eight accused as five were absconding and there is no further statement regarding three more accused being arrested and put to trial, how the trial court proceeded to convict 11 accused and only two were set to be absconding. Even the scribe of the FIR has not been examined. It was extremely relevant when PW-1 has stated that she had no knowledge of the contents of the FIR. [Para 30][633-E-G]

1.11 Although the death of the victim was homicidal but it is not convincing that the prosecution has established the case beyond reasonable doubt against the accused appellants. The appellants would be entitled to benefit of doubt. The conviction and sentence are set aside. [Para 31][633-H; 634-A]